JAYAWARDENA v. THE PEOPLE ‘ S BANK

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CA
Jayawardena v. The People's Bank
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JAYAWARDENA
v.
THE PEOPLE’S BANK
COURT OF APPEALJAYASINGHE, J. ANDEDIRISURIYA, J.
CA NO. 1503/2000AUGUST 31, ANDOCTOBER 22, 2001
Writ of certiorari and writ of mandamus – Quash decision of People’s Bank refusinga transfer – Public and contractual duties – Public Law and Private Law – Judicialreview.
The petitioner sought a writ of certiorari to quash the decision of the Bank refusingto transfer the petitioner to a congenial station in terms of a Bank Circular anda writ of mandamus to compel the respondent Bank to transfer him forthwith.
Held:
There is a distinction between public duties arising from statutes whichare enforceable by mandamus and contractual duties enforceable as mattersof private law by ordinary contractual remedies such as damages, injunctions,etc.
Since mandamus now belongs essentially to public law, its applicabilitycannot be extended to an area where relief is available under private law.
Per Jayasinghe, J.
“I am unable to accept the submission that the Circular issued by theBank regulating the transfer of personnel from one station to another can beequated to an exercise of statutory power or discharge of a public duty toattract the writ jurisdiction of this Court.”
Contract of employment is solely a matter within the purview of privatelaw and not a matter for judicial review.
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APPLICATION for writs in the nature of certiorari and mandamus.
Cases referred to :
Weligama Multipurpose Co-operative Society v. Daluwatte – (1984) 1 Sri LR195 at 199.
Mendis v. Seemasahitha Panadura Janatha Santhaka Pravahana Sevaya andOthers – (1995) 2 Sri LR 284.
L. P. Perera v. Ceylon Government Railway Uniform Staff Benevolent Fund- 67 NLR 191.
J. W de Alwis v. V. C. de Silva – 71 NLR 108.
Wickremasinghe v. Ceylon Electricity Board – (1997) 2 SLR 377.
Piyasiri v. People's Bank – (1989) 2 Sri LR 47.
Ratnayake and Others v. Perera – (1982) 2 Sri LR 451.
Ex parte Napier – (1852) 18 QB 695 at 695.
W. K. C. Perera v. Professor Daya Edirisinghe and Others – (1995) 1 SriLR 148.
S. C. 8. Walgampaya with W. A N. Jayanath for petitioner.
Wijayadasa Rajapakse, PC with Dhammika Abeygunwardena for respondent.
Cur. adv. vult.
April 04, 2002
JAYASINGHE, J.
This is an application for a writ of certiorari to quash the decisionof the respondent Bank to refusing to transfer the petitioner to acongenial station in terms of Circular No. 248/91 marked T and fora writ of mandamus to compel the respondent Bank to transfer thepetitioner forthwith to a congenial station. The petitioner states thathe was transferred to Uda Walawe Branch as Manager as from 13.10. 1998 and that Uda Walawe Branch has been classified as anuncongenial station in terms of Circular No. 248/91 and that an officer
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Jayawardena v. The People's Bank (Jayasinghe, J.)
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could be retained in such an uncongenial station for a maximum periodof two years and that he has become entitled to a transfer to acongenial station as from 14. 11. 2000. That, in order to give therespondent Bank reasonable time to make arrangements for areplacement, the petitioner before the expiry of the said two-yearperiod applied for a transfer indicating his preferred stations. Sincethere has been no response to his application and the subsequentreminders, the petitioner has assumed that the bank has impliedlyrefused his application. The present application is for a writ of certiorarito quash the decision of the respondent Bank refusing to transfer thepetitioner to a congenial station and for a mandamus in terms of prayer(b) to the petition.
The respondent Bank filed objections. Averred that the petitionerhas been serving the Corporate T Branch since 01. 08. 1971, tillhe was posted to Uda Walawe as Branch Manager and is now seekinga transfer to his home town branch or Head Office or Corporate TBranch. The respondent states that there are no vacancies in anyof those stations to enable the respondent Bank to accommodate thepetitioner as requested. The respondent Bank also objected to thepetitioner’s application on the basis that there has been no orderthat has been made in respect of the petitioner to be quashed byway of certiorarti. I hold that there is merit in the objections of therespondent Bank. Certiorari is accordingly refused.
Mr. Walgampaya submitted that a writ of mandamus was originallyused to enforce the performance of public duties imposed by statuteupon public authorities and that its scope has widened over the yearsand that writ can be made use of to compel that the performanceof non-statutory duties including duties imposed by rules, regulationsand circulars. Mr. Walgampaya then referred to a passage from Wade8th edition at 607 where it has been observed that :
“Within the field of public law the scope of mandamus is still
wide and the Court may use it freely to prevent breach of duty
and injustice :
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Instead of being astute to discover reasons for not applying thisgreater constitutional remedy for error and misgovernment we thinkit is our duty to be vigilant to apply it in every case to which byany reasonable construction it can be made applicable.”
There can never be any doubt regarding the application of theabove formula. Courts will always be ready and willing to apply theconstitutional remedy of mandamus in the appropriate case. Theappropriate case must necessarily be a situation where there is apublic duty/ In the absence of public duty an intrusion by this Courtby way of mandamus into an area where remedial measures areavailable in private law would be to redefine the availability of aprerogative writ. The words error and misgovernment referred to abovemust be understood in the context of a prerogative remedy. Error andmisgovernment must necessarily stem from public duty. As Wadeobserved “mandamus now belongs essentially to public law.” (607)Counsel also referred Court to a passage from Wade at page 627where it is observed :
“The law has been driven from these familiar moorings by theimpetus of expanding judicial review, which has been extended totwo kinds of non-statutory action. One is where bodies which areunquestionably governmental do things for which no statutorypower is necessary, such as issuing circulars or other forms ofinformation" . . .
‘The other category is where judicial review is extended tobodies which by traditional test would not be subject to judicialreview and which in some cases fall outside the sphere of governmentaltogether.”
In the traditional sense :
“Judicial review is designed to prevent the excess and abuseof power and neglect of duty by public authorities. In the past
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Jayawardena v. The People’s Bank (Jayasinghe, J.)
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there was a clear test for determining the limits of Court’sjurisdiction : “power” meant legal power confirmed by Act ofParliament. Subject to the special rules governing individual remediesit was only necessary to ascertain that the power was statutorybefore invoking the aid of the Court. Nor was it difficult to distinguishpublic authorities from other recipients of statutory powers suchas commercial companies and trusties. If the power was grantedfor governmental purposes its exercise was controllable by theremedies of Administrative Law. The same could likewise be saidof duties.” (626)
It is also necessary to have in mind the distinction between publicduties arising from, statutes which are enforceable by mandamus andcontractual duties enforceable as matters of private law by ordinarycontractual remedies such as damages injunctions, etc. "Sincemandamus now belongs essentially to public lav/' as observed byWade its applicability cannot be extended to an area where reliefis available under private law. Sharvananda, J. in Weligama MultipurposeCo-orperative Society v. Daluwattem at 199 observed that writ will notissue for private purpose, that is to say for the enforcement of a mereprivate duty stemming from a contract or otherwise. Contractual dutiesare enforceable by the ordinary contractual remedies such as damages,specific performance or injunctions. They are not enforceable bymandamus which is confined to public duties and is not granted wherethere are other adequate remedies.
I am unable to accept the submission that the circular issued bythe respondent Bank regulating the transfer of persnonnel from onestation to another can be equated to an exercise of statutory poweror discharge of a public duty to attract the writ jurisdiction of this Court.
In Weligama Multipurpose Co-operative Societies Limited v.Daluwatte {supra) it was held that :
“Mandamus lies to secure the performance of public duty, inthe performance of which an applicant has sufficient legal interestto be enforceable by mandamus; the duty to be performed mustbe of a public nature and not of a merely a private character.A public duty may be imposed by statute, charter or the commonlaw or custom.”
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It was further held that :
“Duty prescribed by . . . circular. . . is not in the nature of apublic duty such as to attract the grant of writ of mandamus forits enforcement.”110
In Mendis v. Seemasahitha Panadura Janatha Santhaka PravahanaSevaya and OthersS. N. Silva, J. had held :
“Writs of certiorari and prohibition are instruments of public lawto quash and restrain illegal governmental and administrative action;similarly the writ of mandamus lies to enforce the performance ofa statutory duty by a public authority. They are instruments ofjudicial review of administrative action."
His Lordship went on to observe that what is sought to be doneis an enforcement of a contract of employment, contracts of employmentare enforceable by ordinary action and not by judicial review … 120contract of employment is solely a matter within the purview of privatelaw and not a matter for judicial review.
In L. P. Perera v. The Ceylon Government Railway Uniform StaffBenevolent Fund3* H. N. G Fernando, J. held that :
“The duty … of the secretary and treasurer to summon ageneral meeting is neither a public duty nor a duty to be performedin the interests of or for the benefit of the public. Accordingly, thewrit of mandamus will not lie to compel its performance.”
In J. W. De Alwis v. V. C. de SilvaP> it was held that :
“A writ of mandamus could not be issued because no statutory 130duty of a public nature was owed by the respondent to the petitionerto forward the aforesaid petition to their respective addresses.Moreover, mandamus was not available to the petitioner for thereason that the duty which arose under the regulation was not owedto him but to the Crown.”
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Jayawardena v. The People's Bank (Jayasinghe, J.)
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In Wickremasinghe v. Ceylon Electricity Board® Ranaraja, J. heldthat :
“The general rules of mandamus is that its function is to compela public authority to do its duty. It is a command issued by asuperior court for the performance of a public legal duty. It is 140only granted to compel the performance of duties of a public natureand not merely of a private character that is to say for theenforcement of a private right stemming from contract of theparties.”
In Piyasiri v. People's Bank® Court held that :
“Mandamus did not lie to compel the Board to call the petitioner,a bank clerk for an interview with a view to promotion in termsof the circular as –
the bank though subject to ministerial control is not a public
body but basically a commercial bank;150
the said circular does not have statutory force;
in any event, in the implementation of the circular which wasa private and internal matter, the bank has a discretion tocall for recommendations from a superior officer.”
I have carefully considered the submissions of Counsel.
Mr. Walgampaya is seeking relief from this Court relying on a circularwhich spells out the criteria for transfer of the bank staff from onestation to another. Admittedly, the circular applies to officers whohave a contractual relationship with the bank. In a sense the violationthe petitioner is complaining of is to remedy a breach of contract by isoway of writ of mandamus.
In Ratnayake and Others v. Perera® Sharvananda, J. observed :
“. . . today the chief function of the writ is to compel theperformance of public duties prescribed by statute though it liesas well for the enforcement of a common law public duty."
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Lord Campbell, CJ. in Ex parte Napieri® at 695 stated that :
“A legal obligation which is the proper substratum of a mandamuscan arise only from common law, statute or some contract.”
His Lordship referring to Professor Wade in his book AdministrativeLaw 4th edition at page 603 where he has observed that :
“Professor Wade has correctly characterised this statement asa loose dictum which need not necessarily mean that Lord Campbellthought that mandamus was a remedy for a breach of contract.“Rights flowing merely from a contract of membership should notbe within the scope of mandamus.” The Court does not issuea writ of mandamus in a case in which the right which the petitionerwants to enforce is based on a contract. Contractual duties areenforceable as a matter of private law by ordinary contractualremedies such as damages, injunction and specific performance.Duties enforceable by mandamus are those imposed by law." 180
Mr. Walgampaya also referred to W. K. C. Perera v. ProfessorDaya Edirisinghe and Others where the Supreme Court held thata writ of mandamus would lie to compel the University of Kelaniyato award a degree to the petitioner who has satisfied the rules andexamination criteria. In issuing the writ the Supreme Court was influencedby the fact that the failure of the University to award the degree wasa violation of a fundamental right of the petitioner. This case hasno application in the present circumstances as there has been noallegation of a violation of a fundamental right.
I am of the view that this is not a matter in which mandamus would molie. Application for writ of mandamus is accordingly refused with costsfixed at Rs. 5,250.
EDIRISURIYA, J. – I agree.
Application refused.